In this episode of Law, disrupted, John is joined by Michael D. Hausfeld. Michael is widely regarded as one of the leading plaintiffs antitrust lawyers in the world. This episode examines how he achieved a $2.67 billion settlement, as well as market-changing injunctive relief for Blue Cross Blue Shield (BCBS) subscribers. 

The conversation begins with John and Michael discussing the background of the case, noting that BCBS is the single largest national provider of healthcare insurance with over a hundred million subscribers. Together, they discuss how Hausfeld LLP first came to be involved in the case more than 14 years ago, with Michael describing how a number of firms, including firms that compete with Hausfeld LLP, came to him with suspicions of anti-competitive behavior, asking if he could see whether or not there was an antitrust violation. 

They then discuss how BCBS structured its “Blue Network” so that each individual Blue Cross entity was considered an independent entity, yet none could compete for healthcare insurance in any state outside their designated territory. They explain how these ostensibly separate entities had essentially allocated markets between themselves and agreed not to compete with each other in violation of antitrust laws.

John and Michael cover the extensive discovery taken in the case, including the numerous depositions taken and the millions of documents produced. Michael describes the privilege disputes over hundreds of thousands of documents and the mostly favorable rulings the plaintiffs obtained before a Special Master who examined every document in dispute. 

John and Michael then discuss the battle of experts in the case and how, unlike a traditional cartel case where the experts need only determine a “but, for” price, this case required the experts to actually model the marketplace and identify which areas within a state a competitive entity would have entered first, how that might grow, etc. The experts then modeled or extrapolated those results for all 49 other states. Michael explains the judge’s novel process for resolving expert disputes in which he had two economists educate him off the record on the factors that each side’s economists focused on in making their determinations.

John and Michael then explore how the judge’s ruling on a motion to determine the applicable principle of law, later affirmed on appeal, set the stage for settlement negotiations to be productive. Michael explains how the scope of injunctive relief rather than arriving at the $2.67 billion settlement amount was the most difficult issue to negotiate. They examine how the injunctive relief obtained requires BCBS to restructure its Blue Network so that national BCBS accounts can obtain multiple bids at their choice. They also discuss how, because the national account market is the benchmark for the remaining portions of the market, that will affect competition for all insurance markets: national, regional and local.

They then discuss the new cases Michael is now working on, including one involving whether or not a branded manufacturer of HIV drugs unlawfully extended the life of its patents so that it could control pricing, another involving whether or not the major rail carriers agreed not to compete on imposing a fuel surcharge, and a mass tort climate change case on behalf of a number of global south countries against major carbon emitters.

Finally, John and Michael discuss Michael’s view that big tech, including Amazon, Microsoft, Google, and Meta will be a focus of a great deal of antitrust attention for some time into the future.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of ‘Law, disrupted,’ John is joined by Eric Winston, a Quinn Emanuel partner in the Los Angeles office. Eric is one the firm’s insolvency and restructuring partners. He is based in Los Angeles and appears in case around the country.

Together, they discuss the Aearo bankruptcy case in Indianapolis, Indiana – a case where Aearo’s (solvent) parent, 3M Company, tried (but failed) to use Aearo’s bankruptcy to enjoin the largest MDL litigation in the federal court – the Combat Arms Earplugs MDL in Pensacola, Florida. This may be the first time in the recent history of “mass tort” bankruptcy cases that tort victims were able to defeat an injunction to protect non-debtor parent companies. 

The conversation begins with events leading up to the bankruptcy and the MDL, comprising over 250,000 product liability claims relating to defective earplugs sold to the US military. The discussion highlights the work of Quinn Emanuel associate Matt Hosen who found, buried in a large document production in a prior (and successful) antitrust case against 3M, an internal 3M document that became known as “The Flange Report.” John explains that the report by a scientist at 3M revealed that the earplugs that 3M had been selling to the U.S. military for over 15 years were defective. The report led to the filing of a False Claims Act suit against 3M and became important evidence in the resulting lawsuits filed by a quarter million active and former US service members.

John and Eric then discuss Quinn Emanuel’s role in the ensuing mass tort litigation against 3M and Aearo, consolidated in an MDL proceeding in Pensacola, Florida. They recount the jury verdicts in “bellwether trials” and the sudden bankruptcy of just Aearo, in Indianapolis, as well as Aearo’s immediate efforts to extend the “automatic stay” protections of a bankruptcy filing to 3M, even though 3M itself was not in bankruptcy.

John asks Eric what 3M was trying to accomplish by the bankruptcy filing. Eric explains that 3M’s goal was to use controversial bankruptcy tools, including the automatic stay, claim estimation or channeling injunctions into a bankruptcy plan, and forcing plaintiffs to file proofs of claim. These tools have been used in other major mass tort cases, such as in the LTL/Johnson & Johnson litigation, where a subsidiary holding the mass tort liabilities files for bankruptcy, but the solvent parent does not. In these cases, the debtors have been overwhelmingly successful in protecting the non-debtor parents. 

John and Eric discuss why this matters. As Eric explains, 3M wanted to channel the resolution of all the tort claims into bankruptcy and, in turn, force plaintiffs to take less than they would usually get in civil court litigation, resulting in 3M keeping more money. Eric and his colleagues were able to defeat this strategy.

Together, John and Eric then cover the Aearo bankruptcy case, including the bankruptcy discovery, trial, and important cross-examinations, including the importance of a key funding agreement between 3M and Aearo. 

The discussion then turns to what happened in the MDL before and after the bankruptcy court denied the injunction Aearo sought for 3M’s benefit. This included the motions Quinn Emanuel filed in the MDL to stop 3M from arguing that it was not 100% directly and independently liable for all earplug litigation.

Finally, John and Eric discuss Eric’s experience working more broadly with the plaintiff lawyers in their bankruptcy arena and their different approaches to litigation, as well as the impact the Aearo case may have in future “mass tort” bankruptcies, before concluding their discussion.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of ‘Law, disrupted,’ John is joined by Vinit Nijhawan, Managing Director at MassVentures – a venture capital firm focused on fueling the Massachusetts innovation economy. Vinit also runs the Mass Transfer Center, which helps universities and institutions of higher learning commercialize their unused intellectual property rights.

John and Vinit begin by discussing a study that Vinit co-authored that examined how effective or ineffective universities were at commercializing their patent portfolios. One key conclusion of the study was that approximately 60% of the patents held by universities are never licensed. This can send a message to faculty members that the university will not back up their efforts to develop and obtain patents by enforcing them. 

John and Vinit then examine the best practices at universities that successfully commercialize their patent portfolios. They discuss the entrepreneurial systems at MIT and Stanford, where individual faculty members who develop inventions create a market for their patent either through licensing to an existing company or by creating a startup that venture capitalists invest in. They also discuss universities with activist technology transfer offices that often have funding to help advance projects towards commercialization. These technology transfer offices actively connect faculty members with entrepreneurs and venture capitalists to let them know what technologies the universities have available.

The conversation moves on to the steps universities must take to understand which of the 60% of unlicensed patents they should seek to commercialize. Vinit explains that focusing on potential infringement cases helps to identify areas where there is an established market for a given patented technology. John and Vinit discuss in depth how MassVentures helps universities identify areas of their unlicensed patents they should seek to commercialize. Vinit explains that they have used over 200 analysts, primarily engineers, to review patents according to a set scoring system. They go into the elements of this scoring system and how it measures the strength of a patent’s claims, the size of the market opportunity, and how good the story on infringement appears to be. They note that the size of the market opportunity often changes over time and requires periodic re-examination to identify cases where an invention was far ahead of the market when it was first patented. Over time, though, the market may catch up, and a patent that was too early once may become timely and valuable over time.

John and Vinit then explore what MassVentures does once it has identified an unlicensed patent that appears to be infringed. Vinit explains that this often involves bringing on board a litigation funder and/or a law firm willing to work on a contingency basis to help make the case for pursuing the infringer. They also discuss the importance of investing in reverse engineering the infringing product before approaching the infringer to be certain that the university has a solid case.  

John and Vinit explore the reluctance some universities have to initiate patent litigation. They discuss the fear some universities have of adverse publicity and particularly the fear that such publicity would impact public funding. They also examine the impact that having prominent alumni associated with an infringing company or its research grants from that company can have on the decision-making process.

John and Vinit then discuss licensing negotiations between the university and the infringer prior to initiating a lawsuit. They compare the relatively low revenues most universities currently receive from licensing efforts with Vinit’s experience at Boston University, which, over five and a half years, launched eight companies that raised over $350m.

Finally, John and Vinit explore special purpose entities and their potential in commercializing paten

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of ‘Law, disrupted,’ John is joined by Luke Nikas, partner in Quinn Emanuel’s New York office. Luke is widely recognized as one of the top lawyers in the US and has been selected as a Law360 MVP, is Band 1 rated in Chambers, and has been named among Lawdragon’s 500 Leading Lawyers in America. He is also co-chair of the firm’s Art Litigation and Disputes Practice and probably has the world’s most prominent and successful art litigation practice. Together, they discuss the intersection between art, the law, and art disputes more generally.

The conversation begins with John asking Luke whether there is such a thing as “art law” – Luke notes that there is such a thing—there are specific, narrow statutes that touch on art but for the most part, art law is a composite of several other areas of law that might apply to any dispute. Most art law cases concern legal principles, such as contracts, intellectual property, fiduciary duty and the like, which happen to arise in the context of a dispute involving art. 

Together, they discuss the Knoedler Art Gallery case that was litigated from about 2011-2018 – a lawsuit that involved what Luke describes as “one of the most prominent art galleries in the world” before it closed. Luke represented the President of the gallery, and a film was made about the episode. They emphasize the legal and factual issues that surround authenticity disputes.

They move on to discuss copyright and fair use matters, including the importance of a copyright case involving Andy Warhol’s work, presently pending before the United States Supreme Court. These types of cases raise important issues about what material we’re trying to protect and why, and how we can develop judicially manageable standards to resolve fair use disputes when the decision-makers are not visual art experts. For example, when evaluating two artworks in a copyright infringement case, what weight do we place on the meaning, message, and visual appearances of the works at issue?

John and Luke also examine the relationship between collectors, dealers, gallerists and art advisors. These relationships can create obligations and expectations between parties that translate into fiduciary and other legal duties that the gallery or advisor wasn’t anticipating.  Luke discusses how to protect against these situations so that everyone involved has a clear understanding of the scope of the relationship. 

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of ‘Law, disrupted,’ John is joined by Evyatar Ben Artzi, co-founder & CEO of Darrow – an Israel-based company that uses artificial intelligence to scan the internet and identify potential claims. Darrow does this by identifying instances where companies have broken the law or failed to comply with their own rules or policies.

The conversation begins with Evyatar discussing his background prior to starting Darrow, including his years as a combat officer in the Israeli Defense Forces, his legal education including his study of Law and Cognitive Science and his tenure as a Supreme Court clerk. Evyatar explains that while at the Supreme Court, he witnessed some of the challenges plaintiffs’ firms faced, inspiring him to start working on a data-driven way to find winning cases and bring them to law firms.

John and Evyatar then dive into how Darrow operates. Evyatar explains how Darrow’s “justice intelligence” helps lawyers find better cases, reducing due-diligence costs of finding those cases, and bringing them to court effectively. The process starts by studying successful cases from the past and developing a formula or algorithm to identify similar patterns from current real-world data. Darrow then searches public information, including news feeds, social media, administrative filings, environmental monitoring, HTML source codes, and legal data, including court dockets and legislation, to find other instances of the same patterns that have previously led to successful cases. The system then determines how many people were harmed and forecasts what the likely legal outcome would be to help set the value of the case. Instead of a lawyer looking to find a single “smoking gun,” the artificial intelligence system combines many data points across the internet to put together a complete claim that resembles a previous successful case. Then, Darrow finds a lawyer to examine whether the potential claim is actionable.

John and Evyatar discuss how this system is applied to various types of claims. They discuss how it works in data privacy cases where data from the source code of a company's website or app can be compared to the company’s legal documents, terms of service or privacy policies. They then explore recent cases where tech companies have faced trouble for sharing data with third parties, contrary to representations they have made to users. In particular, John and Evyatar discuss a recent case in which a Special Master was appointed to interview Facebook engineers to determine exactly what data Facebook has from its users. It has become commonplace that companies simply do not know what data they collect from users, where it is stored, and what uses are made of it. They then turn to the incentives companies have to comply with data privacy requirements including California’s statute imposing set penalties per user and recent high dollar class settlements.

The conversation then moves to how Darrow’s artificial intelligence can help identify environmental claims. John and Evyatar examine how complaints on social media can be matched with hard data from environmental sensors, as well as public information about factories in the area, including previous environmental claims, to develop a viable mass tort case.

They also discuss how online pricing data can be evaluated together with public data about product launches and sales to identify patterns that suggest cartel activity or other antitrust claims. They emphasize the need to carefully evaluate such situations to determine if there is evidence of a conspiracy or other illegal activity associated with the patterns in the data.

John and Evyatar then touch upon data breach cases that do not implicate privacy concerns and how the plaintiffs’ class action bar has adapted its behavior with respect to these cases. 

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by David Bilsker, partner at Quinn Emanuel & co-chair of the biotechnology practice, and Margaret Shyr, associate at Quinn Emanuel. David and Margaret represent a Chinese-based DNA sequencing company, BGI (Beijing Genomics Institute), which recently made headlines in China for winning the largest ever U.S. jury award for a Chinese-based company. In this episode, John discusses how BGI ultimately prevailed against the U.S.-based leader in the DNA sequencing field, Illumina—not only in achieving this record-breaking jury verdict but also invalidating Illumina patents that were the cornerstone of its decades-long dominance in the sequencing market.

The episode begins with John exploring how Illumina gained its market reputation and power in DNA sequencing, which plays a huge role in fighting and understanding diseases like COVID-19. In the early 2000s, Illumina bought a British company, Solexa, whose patents and technology allowed the former to maintain its market leadership in DNA sequencing ever since. Next, David introduces the background of BGI, which started in China to contribute to the Human Genome Project, and BGI’s eventual acquisition of a Silicon Valley-based sequencing company, Complete Genomics. 

John asks how Chinese DNA sequencing companies cross paths with U.S. patent litigators. David gives an overview of how Illumina initiated a worldwide campaign against BGI to prevent it from introducing its DNA sequencers to the market –Illumina even won a preliminary injunction in California. With BGI being legally foreclosed from the U.S. market, they recognized that they needed the Quinn Emanuel team, led by David, to take over.

John discusses with David and Margaret the challenges of litigating against Illumina in California, where Illumina was asserting patents that had survived numerous challenges by other would-be competitors, ending these earlier market entry attempts. David and Margaret describe the invalidity strategy and evidence unearthed during discovery that led to the invalidation of Illumina’s flagship patent at trial. John also notes the team’s successful mitigation of Illumina’s predictable attempts to appeal to anti-Chinese sentiments to members of the jury. Despite having no non-infringement defenses, BGI was found to owe $8 million to Illumina on the remaining four patents—a mere fraction of Illumina’s ask.   

Then John moves on to the Delaware case, tried only a few months later, in which David and Margaret turned the tables on Illumina and achieved the $333m verdict for Complete Genomics and BGI. They discuss the challenges of asserting CGI’s patents and defending against Illumina’s patents covering complex DNA sequencing technologies in a ten-day time-restricted trial. Margaret notes that Illumina’s main strategy against CGI’s patents was based on telling a “prior invention” story through an Illumina senior executive. David explains how the Quinn Emanuel team developed key infringement and validity evidence during fact discovery and its presentation at trial. John and David discuss David’s cross-examinations of Illumina’s lead expert, senior executive, and the mid-trial “surprise” from this executive that derailed Illumina’s case. They also explain the strategy to limit the precious trial time spent on Illumina’s asserted patents, but to inflict maximum surgical harm through cross-validation to invalidate all of Illumina’s patents. John also highlights the damages presented by another Quinn partner, David Perlson, who established to the jury that BGI should be awarded its full $333.8m claim. David describes the headline-making coverage of this victory in China and its significance for Chinese companies.  
Finally, John, David, and Margaret discuss the ultimate settlement of this global lawsuit, which resulted in Illumina paying $325M to BGI, believed to be one of the largest patent verdicts ever.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by Lucas Bento, Of Counsel in Quinn Emanuel’s New York office. Bento is the author of The Globalization of Discovery: The Law and Practice under 28 U.S.C § 1782 (Section 1782), the first and only book to discuss the law pertaining to that Section. John and Lucas discuss how, under Section 1782,  parties to proceedings outside of the US can invoke discovery procedures inside the US in aid of those foreign proceedings. John notes how many foreign lawyers he talks to complain about the relatively burdensome US discovery system. Yet they also envy it, especially if you’re a plaintiff.  US law has a procedure to achieve US-style discovery of evidence or witnesses located in the US – Section 1782 of Title 28 of the United States Code.

The conversation begins by outlining what exactly Section 1782 is. Lucas notes it's a federal statute that allows a party to a foreign proceeding to gain access to US discovery procedures and evidence (including documents and depositions) for use in the foreign proceeding. Historically, one would need to use letters rogatory or go through the Hague Convention on the Taking of Evidence.  But Section 1782 provides many advantages over those tools.  For example, under the Hague Convention, US-style depositions are not available; however, under Section 1782, if there is a witness subject to the jurisdiction of the US courts, they could be served with a subpoena and get a complete US-style deposition. Lucas highlights how powerful a tool §1782 can be, working as a global evidentiary X-ray machine.

John asks how one invokes §1782, with Lucas highlighting the application process and the necessary requirements that must be met in order for the application to be processed successfully. If the court authorizes the application, the discovery target can be subpoenaed immediately, making it a very contentious issue. They dive deep into the logistics and Intel discretionary factors of Section 1782 and how these can impact the success of an application. 

John notes how US discovery is not loved around the world – with foreign jurisdictions hostile to the US’s broad processes. In discussing the types of foreign proceedings that qualify under Section 1782, Lucas states that you can obtain US-style discovery as long as the foreign proceeding is pending or within reasonable contemplation – something you can’t typically do in the US. However, there are some limitations and boundaries in place, such as the fact that people can’t use §1782 to fish around and see if someone has a claim in the first place, or use it for private arbitrations. 

The conversation moves on to discuss what the future of the law surrounding Section 1782 will look like in the future. Lucas believes its trajectory is on the assent, with more applications being made, which only gives the courts more issues to unpack and define. He argues that Section 1782 is now becoming a routine consideration across the entire legal industry, noting that the statute can be a bastion of truth in a world struggling with fake news and widespread disinformation. The use of legal tools, such as Section 1782, to discover facts can be a means to achieve fairer and more just decisions around the world.

Finally, John and Lucas discuss how foreign litigants must act fast and hire qualified US counsel to assist in the use of Section 1782. Lucas notes how relevance is important, although it is still a very broad term in general, and explains why the timing of the application is crucial.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by Norman (Norm) E. Siegel, partner at Stueve Siegel Hanson LLP in Kansas City, Missouri. He is the lead plaintiffs’ counsel in the $450 million settlement of a data breach class action against T-Mobile. Norm has been involved in many high-profile data breach cases, and served as lead counsel in the three largest data breach settlements reached to date: cases against T-Mobile, Equifax, and Capital One. Together, these settlements totaled over $2 billion in cash and other relief. Norm was recently named by Law360 as a “Titan of the Plaintiff’s Bar” for his work in class action litigation.

The conversation begins by discussing how data breach litigation has evolved in the past 10 years. John asks about the type of claims that are typically asserted in these nationwide class actions. Norm explains that plaintiffs typically assert common law tort claims in these cases, especially negligence, breach of confidence and invasion of privacy. He adds that when the plaintiffs have an express contract with the defendant, such as when they have accounts with the defendant, they will often assert claims for breach of an express or implied contract that the defendant would keep the plaintiff’s information confidential. 

John and Norm turn their focus to recent California legislation establishing statutory damages for data breaches in general, as well as for breaches involving medical information. Because both acts are relatively new, the case law interpreting them is still developing. John and Norm discuss the role that expert testimony, California Attorney General’s Guidelines, and FTC recommendations play in determining what data security measures the defendant should have implemented in these cases.  They also discuss how to navigate the complexities of having both a nationwide class and a subclass of California plaintiffs who have recourse under these statutes in the same case.

The conversation then moves to legislation in other states, as well as the prospects for federal legislation establishing uniform national standards regarding data security similar to the standards in Europe under the GDPR. John and Norm discuss recent attempts at such legislation and the obstacles that have prevented it from passing this far.

They then discuss standing issues in data breach cases, and the key decisions, including Spokeo and TransUnion, that have recently clarified how standing may be established. They also discuss the issue of whether a defendant owes a duty to protect confidential information if it has no contract with a plaintiff and how that issue impacted the Equifax and Capital One cases.  

John moves the conversation to the issues that discovery tends to focus on in data breach cases. Norm explains that defendants’ discovery has evolved from focusing on the measures they took to guard data to deposing plaintiffs about what damage they did or did not suffer because of a data breach. Norm adds that the plaintiffs’ discovery focuses primarily on their damages, but also on the defendant’s history of previous security breaches.

This leads to a discussion of damages theories and how they have evolved in the past five years. John and Norm discuss alternatives to just compensating for out-of-pocket losses, including damages for the lost benefit of the bargain in contract cases, unjust enrichment, the time and effort spent to repair the breach, and nominal damages. They also explore the benefits to the plaintiff class of requiring the defendant to take specific measures to prevent future security breaches and to help plaintiffs to protect themselves when breaches occur.

Finally, John and Norm discuss the settlement process, including how to allocate settlement amounts among the plaintiffs and the process to get a successful settlement for both sides. Norm believes that settlements result from always putting out high-qualit

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by Michael A. Barlow, partner at Abrams & Bayliss LLP, and Silpa Maruri, partner at Quinn Emanuel's New York office. Together, they discuss litigation in Delaware, which John briefly highlights as the epicenter of both corporate America and high-end corporate litigation.

The conversation begins with John asking Michael how Delaware managed to stake out a unique position of being the jurisdiction of choice for corporations, which has led to high-end and high-stakes litigation in Delaware courts. Michael notes the answer is two-fold. The first answer is former President Woodrow Wilson. He explains that Delaware largely adopted the same revolutionary law of New Jersey by the then Governor Wilson. The second answer is that Delaware has worked hard since to stay at the forefront by annually updating its laws and court system. They touch on how Nevada is trying to mimic Delaware but, unfortunately, is proving to be unsuccessful so far.

Silpa explains the difference between the two types of courts in Delaware: the Court of Chancery and the Superior Court. Silpa highlights how the former is a court of equity; therefore, it hears matters sounding in equity, whereas the latter is a court of law. Together, John, Michael, and Silpa chew over the role of the Delaware Court of Chancery, analyzing the history of the courts as a foundation for understanding the wider role of the courts.

John asks Silpa what lawyers and litigants should expect when they're litigating cases in Chancery Court, with Silpa noting that all trials are bench trials. She highlights how the Court of Chancery is especially bespoke in that not only is it the case that you're going to have the fact-finder be the judge, but that judge is going to be actively involved in deciding even minor things like motions to compel.

The conversation is then steered towards what a trial is like in the Court of Chancery. In many jurisdictions, the date set for a trial is often moved and shifted, but Silpa notes that this specific court respects set trial dates. In addition, she notes that the Vice Chancellors are proactive during the trial.

Finally, John, Michael & Silpa discuss the importance of certainty and predictability on matters of Delaware corporate law. Michael briefly notes how Delaware handles a significant number of sophisticated corporate transactions in the Court of Chancery. However, he notes that the court has a much broader role as a court of equity. Michael notes that there's a pretty broad set of cases that the court handles with the same attention to detail and focus that it brings to these corporate disputes.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by Dr. Marcus Grosch, managing partner of Quinn Emanuel’s German offices. Together, they discuss German patent law. Marcus is regularly awarded top ratings in leading international and German-ranking publications, and both Chambers Europe and Chambers Global have listed him as a “highly regarded patent litigator.”

The conversation begins with John noting how Germany is arguably the world’s second most important patent litigation jurisdiction after the U.S. They highlight how major technology disputes in the U.S. district courts are often seen in parallel proceedings in Germany. Marcus notes that Germany is integral to the patent litigation world due to the sheer number of cases it receives, as the German economy is far more resilient and bigger relative to its other European counterparts. He touches on how Germany’s significance in the field of patent litigation can be traced back as far as the 1950s.

Marcus explains how Germany’s time to trial is also far quicker than in other major European nations, with the fastest trials taking place in Munich and Mannheim, which only take twelve months. He highlights how at least 50% of the patents, whose validity is challenged, are either entirely revoked or significantly amended. Marcus argues that district courts have to be more conscious of the consequences of their decisions, therefore, they have to be more prudent and look more closely into the validity issues, which they are generally ready to do.

Then, John asks Marcus for advice for other lawyers involved in patent litigation in the U.S. and parallel proceedings in Germany. Marcus highlights how in the U.S., the work has to be done ahead of the filing, which is very different from Germany – most of the cases in America need a notice pleading in the first step, whereas Germany requires a case to be complete from the outset. He also points out how different cases are in Germany compared to the ones in the U.S. The most significant difference is that Germany, like all continental European jurisdictions, does not have a trial-based system, so the parties’ arguments are not exclusively presented to the trier of fact through evidence, like witness examinations. Rather, more like in an appellate hearing, the lead counsel, guided by questions and introductory remarks from the bench, has to address all relevant issues of law and fact in the main hearing. The taking of evidence is limited to specific instances, in which contested issues of fact are directly relevant for the court’s decision. However, many factual issues are not in dispute at the end of the process, which is the result of specific pleading standards and flexibly shifting the burden of proof. This is also important since all continental European jurisdictions have no general pre-trial discovery system. All issues of law and fact are addressed in the main hearing, with no separate motions to dismiss or claim construction decisions ahead of the main hearing.

This requires significant preparation and time in court, which Marcus highlights vary depending on the case, with the average patent case being four hours. He notes how sometimes the preparation can take significantly longer than the actual hearing. In addition, he explains how he deals with a ‘hot bench’ over 90% of the time, as judges are very ambitious, prepared and equipped with all of the information and specific details.

Finally, John and Marcus discuss European law and how there is no civil litigation at the European level, so patents need to be litigated in national courts. This will now be fundamentally changed with the Unified Patent Court (UPC), which will start in the second quarter of 2023. This UPC will entertain patent litigation (civil litigation) and a court system that is genuinely supranational and separate from the national systems

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi